It is possible to conduct a re-audit unless the data acquired by the new data has been submitted even if some of the previous tax investigations have been verified.

If there is obvious evidence to prove the suspicion of tax evasion, it is possible to conduct a reinvestigation for the same item of taxation and the same taxable period, and there is no reason to regard that part of the newly discovered data has been verified in the previous tax investigation.

2018Guhap53658. Revocation of global income, disposition, etc.

AA

1. Aa director of the tax office;

2. B. Director of the Tax Office:

o October 11, 2018

November 1, 2018

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The imposition of each value-added tax (including additional tax) listed in attached Table 1 that Defendant AAB director made against the Plaintiff by the director of the tax office on the Plaintiff and the imposition of each global income tax (including additional tax) listed in attached Table 1 against the Plaintiff by the director of the tax office shall be revoked.

1. Details of the disposition;

A. From March 3, 2006 to June 2016, the Plaintiff leased c c c oo (hereinafter “instant building”) located in ○○○○-dong, ○○○○○○-dong, △△△, to BB. A business registration certificate was issued by the Plaintiff that the Plaintiff had been engaged in the inn and the inn and the inn and the inn and the inn and the inn and the inn and the inn and inn and paid the value-added tax and the comprehensive income tax on the operation of the instant building.

B. From May 28, 2015 to June 16, 2015, the head of the tax office imposed a tax investigation on the Plaintiff and BB as the object of the value-added tax investigation from January 1, 2011 to December 31, 2014 (hereinafter “former tax investigation”). After ascertaining the actual operation of BB in the instant building, he/she issued a notice to the Plaintiff pursuant to Article 11(2) of the Punishment of Tax Evaders Act and Article 168(1) of the Income Tax Act on October 2015, the Defendants corrected and notified the Plaintiff’s global income tax and value-added tax (hereinafter “former disposition”).

C. On the other hand, the plaintiff and BB's confirmation in the previous tax investigation process of the case

Details are as follows:

Preparation Certificate

- With respect to the second investigation of value-added tax from January 201 to July 2014, 201, he/she confirmed that he/she received interest of KRW 4,500,000 per month during the period from February 2012 to July 2012 after lending KRW 400,000 to BB.

- With respect to the partial investigation of value-added tax at the end of January 2010 to that of February 2014, 2010, the fact that the return of rent was omitted on January 2010 (108,00,000 won), February 2, 2010 (108,00,000 won), January 1, 201 (108,000), and February 2, 2011 (108,000,000 won).

- During the period from January 201 to December 2014, 2014, I confirm that 3 million won (36,000,000 won, 36,000,000 won, 36,000,000 won, 2014, 36,000,000 won, and 36,00,000,000 won, each month to BB for the period from January 201 to December 2014.

BB Certificates of Preparation

- With respect to the partial investigation of value-added tax at the end of January 2011 to end of February 2014, 2014, it is confirmed that the amount of the franchise revenue was omitted at the time of filing the value-added tax return for the first period (75,000,000), second period (75,000,000), second period (75,000), 2011 (50,000), and second period (50,000,000)

- Confirmation that with respect to the partial investigation of value-added tax at the end of January 2010 to end of February 2014, 2010, the rent was paid to the Plaintiff on January 1, 2010 (108,000,000 won), February 2, 2010 (108,000,000 won), January 1, 201 (108,000), and February 2, 2011 (108,000,000 won).

- During the period from January 201 to December 2014, 2014, he had been paid 3 million won (36,000,000 won, 36,000,000 won, 200 won, 36,000,000 won, 200 won, 2014, 36,000,000 won) monthly while working in CC with respect to the partial investigation of value-added tax for the second period from January 201 to December 2014.

D. On April 28, 2016, the director of △△△ Regional Tax Office received a tax evasion report attached to the lease agreement (hereinafter “instant lease agreement”) on the instant building, which was not verified in the previous tax investigation, and the main contents of the attached lease agreement are as follows.

On January 20, 2006

2. Details of the contract;

Article 1 (Purpose) With respect to the lease of the building of this case, the lessor and the lessee (BB) shall pay by agreement the lease deposit and the rent as follows:

Deposit: O billion won (Won 500,000,000)

Down Payment:The sum 50,000,000 shall be paid and received at the time of the contract. The plaintiff to the recipient

Balance: The balance shall be paid on March 3, 2006, in the Won 450,000,000.

Rent:The 18,00,000 Won (Won 18,000,00) shall be paid on the third day of each month.

Article 2 (Duration) The lessor shall deliver the above real estate to the lessee by March 3, 2006, while the lessor can use and benefit from it for the purpose of the lease, and the lease period shall be from the lease date to March 3, 2008.

Matters of special agreement

4. The registration of a business operator shall be made in the name of a lessor, and a lessee shall assume civil and criminal liability for illegal business.

The lease contract of March 11, 2008

2. Details of the contract;

Article 1 Lessee pays the lease deposit and rent for the instant building to the lessor as follows:

Deposit: Won Sheon 600,000,000

The intermediate payment: The payment shall be made on March 11, 2008, in the Won 500,000,000.

Balance: The balance shall be paid on March 31, 2008, in the amount of one billion Won (Won 100,000,000).

Rent:The Sheon-Won-Won-Won-Won-Won-Won-Won 28,000,000 shall be paid on the day of each month.

Article 2 The lessor shall deliver the above real estate to the lessee by May 1, 2008 in a condition that he/she can use it for the purpose of the lease, and the lease period shall be from the lease date to May 31, 2012.

Matters of special agreement

1) The business operator is registered in the name of the lessor, and the lessee is a civil and criminal liability for illegal business.

The lease contract of June 28, 201

Article 1 (Purpose) With respect to the lease of the building of this case, the lessor and the lessee shall pay by agreement the lease deposit and rent as follows:

Deposit: Won Sheon 600,000,000

Rent:The Sheon-Won-Won-Won-Won-Won-Won-Won 28,000,000 shall be paid on the day of each month.

Article 2 (Duration) The lessor shall deliver the above real estate to the lessee by June 28, 201, while the lessor can use and benefit from it for the purpose of the lease, and the lease period shall be from the lease date to June 27, 2016.

Matters of special agreement

1) The business operator is registered in the name of the lessor, and the lessee is a civil and criminal liability for illegal business.

2) On June 28, 2016, this Agreement entered into an extension contract in connection with the previous contract.

E. The Director of the △△△ Regional Tax Office transferred the above data to Defendant AAA head, from November 9, 2016 to February 20, 2017, the head of the tax office issued a tax investigation on the Plaintiff (hereinafter referred to as “tax investigation of this case”), and confirmed that the Plaintiff denied the details of the Plaintiff’s report of income from the operation of the leisure business and omitted the lease income received by the Plaintiff from BB. Accordingly, the head of the tax office imposed a tax assessment of the global income tax of this case (hereinafter referred to as “value-added tax of this case”) by adding the value-added tax of the second half of January 3, 2006 and the value-added tax of March 1 to 2016 from March 2, 2017 to the first half of 2017 (hereinafter referred to as “value-added tax of this case”) as shown in the attached Table 1, and the head of the tax office imposed the global income tax of this case (hereinafter referred to as “Defendant B”).

F. On June 1, 2017, the Plaintiff filed an objection against each of the instant dispositions with the Tax Tribunal on June 1, 2017, but was dismissed on November 8, 2017.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 8, Eul evidence 1 to 3, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) In relation to double tax investigations (Imposition of global income tax for the period from 2010 to 2014 and value-added tax for the period from 2010 to 2011)

In accordance with the previous tax investigation by Defendant Aa tax office, the global income tax for the period from 2010 to 2014 and the second period from 2010 to 2011 was imposed on the Plaintiff for the same taxable period after the instant tax investigation. However, the lease agreement attached to the tax evasion report is supporting the fact that it had already been confirmed, and thus cannot be deemed as a material that can confirm the source, objectivity, and truth, and it is difficult to view that the lease agreement was forged on June 28, 201, and thus, each of the above dispositions based on the instant tax investigation, which is an illegal duplicate tax investigation, was unlawful.

2) Regarding the exclusion period of imposition (the imposition of global income tax accrued from 2006 to 2010 and the imposition of value-added tax from 2006 to 2011)

Although the Plaintiff conducted a disguised business in the name of the Plaintiff in the instant building, it cannot be deemed a fraud or other unlawful act to the extent that it was merely a false name, and the Plaintiff added a real estate rental business to the category of business on April 24, 2008. The main contents of the lease agreement at the time of the instant tax investigation were stated in accordance with the facts, and the Plaintiff prepared a false contract or did not keep a false book, and the Plaintiff received rent from BB to the account, which does not constitute fraud or other unlawful act under Article 26-2(1)1 of the Framework Act on National Taxes, and thus, the imposition of the global income tax from 2006 to 2010 and the imposition of the value-added tax from 206 to 2011 was unlawful.

3) Additional duties

As long as the Plaintiff did not commit fraud or other unlawful acts for the foregoing reasons, the penalty tax for non-declaration of value-added tax imposed by multiplying the principal tax by 40% pursuant to Articles 47-2 (1) 1 and 47-3 (1) 1 of the Framework Act on National Taxes, and the penalty tax for non-declaration of global income tax, and the penalty tax for non-declaration of global income tax, are unlawful, and the general penalty tax rate shall apply. Therefore,

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Regarding double tax investigations claims

A) Article 81-4(2)1 of the Framework Act on National Taxes provides that "tax officials shall not conduct re-investigation into the same item of taxation and the same taxable period unless there is evident evidence to acknowledge a suspicion of tax evasion."

Meanwhile, a tax investigation should be conducted within such minimum scope as may be necessary for appropriate and fair taxation. Moreover, a tax investigation should be strictly limited to cases where a reinvestigation is allowed rather than cases such as "where there is clear evidence to acknowledge omissions or errors in the details of a return," and the legislative purport prohibiting reinvestigations include not only substantial protection of taxpayers' rights and interests, but also advancement of tax investigation technology, so there is a need to be prohibited, except in exceptional cases where arbitrary tax investigations by the tax authorities are considerably contrary to the principle of fair taxation. It is also reasonable to strictly limit the cases where a reinvestigations are allowed rather than cases such as "where there is clear evidence to acknowledge omissions or errors in the contents of a return," and it is difficult to interpret that a tax investigation is reasonable only in cases where there is clear evidence to acknowledge a suspicion of omissions as one of the cases permitted by Article 81-3 of the Framework Act on National Taxes (see, e.g., Supreme Court Decision 201Du28160, Jan. 28, 201).

B) In light of the following circumstances, the instant lease agreement constitutes an obvious material to prove the suspicion of tax evasion in the instant tax investigation, and the Plaintiff’s assertion on this part is without merit, in light of the legal principles as seen earlier: (a) the instant lease agreement constitutes an obvious material to prove the suspicion of tax evasion.

① All of the instant lease agreement states that "a business owner shall be registered in the name of a lessor, and a civil and criminal tenant shall be liable for illegal business." If a premise of an ordinary lease agreement exists, the Plaintiff, a lessor, shall pay value-added tax on the lease business, and the Plaintiff, a lessor, may not pay the comprehensive income tax on the rent if he/she registers his/her business in the name of the Plaintiff, without paying the value-added tax on the lease business. In particular, the instant lease agreement is clearly stated that the lease agreement between the Plaintiff and BB is related to the lease agreement between the Plaintiff and the Plaintiff, and thus, it is highly likely that tax evasion is confirmed, and it constitutes data that support objectivity and rationality.

② In addition, according to the instant lease agreement, BB paid rent to the Plaintiff. In the instant previous tax investigation, the Plaintiff omitted the Plaintiff’s rent of KRW 18 million in relation to value-added tax from the first to the second period from 2011 on the grounds that the rent received from BB was not clearly verified, and the Plaintiff received interest of KRW 4.5 million in January 2012 to July 2012 on the loan from BB, and the previous disposition was made against the Plaintiff on the premise that the Plaintiff paid KRW 3 million in the amount of rent from the Plaintiff on the basis of the instant lease agreement, and the amount of rent from the Plaintiff and the Plaintiff was consistent with the financial data.

③ The Plaintiff asserted to the effect that the instant lease agreement is merely a material supporting the fact that the lease agreement between the Plaintiff and the BB is already confirmed, and thus, it cannot be deemed as a material that can be re-audited. However, if there is clear evidence to acknowledge the suspicion of tax evasion, a re-audit may be conducted for the same tax item and the same taxable period, and there is no reason to deem otherwise that part of the newly discovered lease agreement was verified in the previous tax investigation. It is reasonable to deem that the instant lease agreement is not a material that has already been investigated in the previous tax investigation process, and that insofar as the initial tax disposition was not based on it, it constitutes an obvious material that can prove the suspicion of tax evasion. The instant lease agreement is not a material that the tax authority actually acquired in the previous tax investigation, but is not a material that can be easily acquired by the Defendants due to the loan and the withdrawal of labor relations between the Plaintiff and the BB.

④ The Plaintiff asserts to the effect that, among the instant lease agreement, the seal BB differs from that of the Plaintiff on June 28, 2011, and that it cannot be seen as supporting the objectivity and rationality of tax evasion because it was forged due to the lack of delivery. However, barring any special circumstance, barring any special circumstance, inasmuch as the existence and content of a legal act is recognized in the case of a disposal document, barring any special circumstance, the method of tax evasion, the amount of tax evasion, the instant lease agreement entered by the party concerned constitutes evidence of objectivity and rationality, and even after June 28, 2011, BB appears to have remitted monthly rent 28 million won to the Plaintiff, as indicated in the instant lease agreement from June 28, 2011, it is difficult to view that the Plaintiff’s lease agreement was forged on June 28, 2011 solely on the grounds that the seal of BB is different from that of the Plaintiff, or that there was no person between the two, the Plaintiff’s assertion that the lease agreement was forged as of June 28, 2018, supra.

2) Regarding the claim for exclusion period of imposition

A) Article 26-2 (1) 1 of the Framework Act on National Taxes provides that "If a taxpayer evades a national tax or obtains a refund or deduction by fraudulent or other unlawful acts prescribed by Presidential Decree (hereinafter referred to as "unlawful acts"), it shall not be imposed after the lapse of ten years from the date on which the national tax can be imposed." Article 12-2 (1) of the Enforcement Decree of the Framework Act on National Taxes provides that "Fraud or other unlawful acts" means acts falling under any of the subparagraphs of Article 3 (6) of the Punishment of Tax Evaders Act, and Article 3 (6) of the Punishment of Tax Evaders Act provides that "Fraud or other unlawful acts" in Article 3 (1) of the Punishment of Tax Evaders Act refers to acts falling under any of the following subparagraphs, which make it impossible or considerably difficult to impose and collect taxes", and subparagraph 4 of Article 26-2 (1) provides that "the concealment of assets, the operation of income, profits, transactions, or concealment of transactions, or other fraudulent acts" in subparagraph 7 of the same Article.

Meanwhile, even if income is obtained through a disguised name, if the act is not related to the evasion of tax, it does not constitute "act under Article 26-2 (1) 1 of the Framework Act on National Taxes" merely based on the nominal name. However, if the nominal name arises from the purpose of tax avoidance, such as avoidance of progressive tax rates, distribution of revenue, concealment of transaction, etc., and if such act is added to active acts such as false payment of the price, false value-added tax, global income tax return, etc., such act constitutes "act under which the imposition and collection of tax is impossible or considerably difficult (see Supreme Court Decision 2013Du7667, Dec. 12, 2013).

B) In light of the above legal principles and the overall purport of the statements and arguments as seen earlier, it is reasonable to view that the Plaintiff’s act of operating a business with respect to the inn business and filing a false value-added tax and global income tax return, etc. accordingly constitutes an unlawful act that makes it impossible or considerably difficult to impose and collect taxes. Accordingly, the Plaintiff’s assertion on a different premise is without merit.

① As seen earlier, the Plaintiff was registered as a business proprietor with respect to the in-house business, despite being a lessor. If the Plaintiff conceals the supply stage of the services such as the lease relationship, the Plaintiff, as the lessor, will not pay the value-added tax on the in-house business, but will not pay the global income tax on the in-house lease business in cases where the value-added tax is imposed based on the value-added tax that is created in all stages of production, provision, or distribution of goods or services.

② All of the instant lease agreement states that "an entrepreneur shall be registered in the name of a lessor and a civil and criminal tenant shall be liable for illegal business." Even though the Plaintiff recognizes the risk of illegal business of BB due to its business registration, the reason why the business registration was made in the name of the Plaintiff is difficult to present any other purpose than tax avoidance.

③ The Plaintiff, while leasing the instant building to BB, ordered the registration of the establishment of chonsegwon on October 28, 2004. However, on September 14, 201, the registration of the establishment of chonsegwon was cancelled, and there is no reasonable ground to cancel the registration of the establishment of chonsegwon since the lease agreement between the Plaintiff and BB continues at the time when the Plaintiff cancelled the registration of the establishment of chonsegwon. The Plaintiff, on the premise of employment relationship with BB, paid the fourth premium of BB on the premise of employment relationship with BB, and returned it to the account under the name of DD, which is the husband. In light of the above, it is reasonable to deem that the Plaintiff’s above act constituted an unlawful act that makes it impossible or considerably difficult to impose and collect taxes.

④ As to this, the Plaintiff alleged that the registration of business was merely nominal, and that the tax authority did not recognize the Plaintiff’s lease of the previous tax investigation of this case, but deemed that it did not constitute an unlawful act, and disposed of by deeming the exclusion period to be five years. However, in light of the fact that the Plaintiff’s business registration under the Plaintiff’s name appears to have been made for the active purpose of concealing the lease service transaction and avoiding tax, even if the tax authority considered the exclusion period for imposition five years during the previous tax investigation of this case, it is difficult to view that the tax authority expressed a public opinion that the Plaintiff’s act,

3) As to the illegal filing of value-added tax and the illegal filing of global income tax

A) Article 47-2(1) of the Framework Act on National Taxes provides that "where a taxpayer fails to file a tax base return under the tax-related Acts by the statutory due date of return, an amount calculated by multiplying the amount to be paid by the rate classified as follows shall be an additional tax; subparagraph 1 provides that "where a taxpayer fails to file a tax base return under the tax-related Acts by the statutory due date of return due to an unlawful act, 40/100; and Article 47-3(1) of the Framework Act on National Taxes provides that "where a taxpayer files a tax base return under the tax-related Acts by the statutory due date of return, and the taxpayer has filed a return of national tax less than the amount to be paid (hereinafter referred to as "underreporting") or more than the amount to be refunded (hereinafter referred to as "excess return"), the aggregate of the amount to be paid and the amount to be paid in addition to the amount to be paid in addition to the amount to be paid in addition to the amount to be paid in addition to the amount to be paid in addition to the amount to be paid in addition to the amount to 10/10."

B) On the other hand, as seen above, the Plaintiff was registered as a business operator with respect to the inn business even though it was a lessor. As such, it is reasonable to view that the Plaintiff’s business registration for the inn business and reporting of false value-added tax and global income tax constitutes a fraudulent act that makes it impossible or considerably difficult to impose and collect taxes, in light of the following: (a) the lessor would not pay the value-added tax on the inn business; (b) the lessor would not pay the rental business; and (c) the tax avoidance takes place as well as the Plaintiff’s global income tax on the inn business; (d) the reason why the Plaintiff registered as a business in the name of the Plaintiff is difficult to achieve other purposes than the tax avoidance; and (e) the Plaintiff cancelled the registration of the establishment of a chonsegwon or made a false appearance of a false employment relationship and made it considerably difficult to impose and collect taxes without reasonable grounds. Accordingly, the Plaintiff’s assertion on the other premise

3. Conclusion

Therefore, the plaintiff's claim against the defendants is dismissed as it is without merit. It is so decided as per Disposition.